Baba v Sheehan (No 3) - [2020] NSWSC 920

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Baba v Sheehan (No 3) [2020] NSWSC 920
Hearing dates: 17 July 2020
Date of orders: 17 July 2020
Decision date: 17 July 2020
Jurisdiction: Equity - Corporations List
Before: Parker J
Decision:
See [26]

Catchwords:
CIVIL PROCEDURE – account – components determined in principle – application for leave to re-open the evidence – strength of evidence – discretionary factors

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 42.34

Category: Consequential orders (other than Costs)
Parties: Silktote Pty Ltd (Cross-Claimant)
Mustafa Sedat Baba (Second Cross-Defendant)
Anna Monica Baba (Third Cross-Defendant)
Representation:
Counsel:
JM Ireland (Cross-Claimant)
M Pesman SC/ JT Johnson (Second and Third Cross-Defendants)
Solicitors:
McGirr Lawyers (Cross-Claimant)
Beazley Lawyers (Second and Third Cross-Defendants)

File Number(s): 2017/252703
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript; issued 21July 2020

This is my third judgment in these proceedings. My first judgment was delivered on 26 September 2019: Baba v Sheehan [2019] NSWSC 1281. My second judgment was delivered on 30 April 2020: Baba v Sheehan(No 2) [2020] NSWSC 468. I will refer to those judgments as “J1” and “J2” respectively. Abbreviations used in those judgments are also used in this judgment.
My first judgment dealt with the principal claim and also set out my conclusions on the cross-claim. My second judgment dealt with the accounting which I have found was required for the purpose of the cross-claim: see J2 [2]-[4]. I set out my conclusions on the accounting issues and stood the proceedings over for seven days to allow the plaintiff to bring in a minute of order giving effect to the judgment and dealing with costs. I had, in my principal judgment, dealt with the costs down to 26 September 2019. The costs referred to were, it is agreed between the parties, the costs of the cross-claim since that date.
The process of drawing up a minute of order was protracted. There was a change in Silktote’s accountancy firm. On 2 June Silktote’s minute of order was provided. There was then a further delay while the Babas considered their response. On 3 July the Babas' solicitor filed a notice of motion for leave to reopen so as to rely on further affidavits of Mr and Mrs Baba sworn 1 July. The matter was then fixed for hearing before me today.
In accordance with my conclusions in the second judgment, the accounts for the trust for the relevant years have been restated. The restated accounts were provided in summary form to the Court. There was no submission from the Babas that they did not reflect the conclusions reached in my second judgment as it currently stands.
As noted in J2 [73], there is a loan account between Mrs Baba and the trust. The effect of the restatement is to reduce the amount owing by the trust but Mrs Baba remains in credit. No judgment is therefore sought against her and she has not sought any judgment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baba v Sheehan (No 3)

Details

AGLC: Baba v Sheehan (No 3) [2020] NSWSC 920
Case: [2020] NSWSC 920
Decision Date: 17 July 2020

CaseChat Overview and Summary

The case before the Federal Court involved Baba as the appellant and Sheehan as the respondent. The dispute was regarding the calculation of damages for an account stated claim. The parties had previously agreed on the fundamental components of the account but differed on certain aspects of the calculation. The Federal Court was tasked with resolving these differences and determining the precise amount owed. The core legal issue before the court was whether to grant leave to reopen the evidence. The appellant argued that new evidence could significantly impact the calculation of damages, while the respondent contended that the evidence was not compelling enough to warrant reopening the case. The court had to weigh the strength of the evidence against the discretionary factors that guide such decisions. It considered whether the new evidence was likely to change the outcome of the case and whether there were any reasons for the delay in presenting it. The court also examined whether reopening the evidence would cause undue prejudice or delay. Ultimately, the court decided against reopening the evidence. It found that while the new evidence might influence the calculation, it was not strong enough to warrant reopening. The court emphasised the importance of finality in litigation and the potential for prejudice if cases were reopened at the whim of the parties. The decision underscored the need for compelling reasons to deviate from the principle of finality in legal proceedings. As a result, the appeal was dismissed, and the original decision regarding the damages remained in place.

Orders